Future Forum: Guilt, Innocence, and the Death Penalty 
TLR vs. TM
Texans for Lawsuit Reform responds to our November 2005 article; we respond to the organization’s response.
Readers’ responses to the November issue
Law and Disorder [Roar of the Crowd]
TLR vs. TM
More Roar
(Page 4 of 4)
On page 228 of the article, Ms. Swartz states: “ . . . TLR’s leadership turned its attention to judicial races, investing around $1 million to defeat Elizabeth Ray, a Houston district judge, in a 2002 Republican primary runoff election for the Texas Supreme Court. In an exceptionally bitter race, TLR tarred her as a sham Republican and a friend of the plaintiff’s lawyers. Its candidate, Dale Wainwright, won.” Ms. Swartz’s factual assertions regarding TLR are wrong.
The true facts are that TLR PAC contributed a total of $15,500 to Judge Dale Wainwright’s campaign, not $1 million. Ms. Swartz does not cite who contributed the remaining $984,500 in stated contributions or the basis of her assertion that it was TLR.
Ms. Swartz’s assertion that TLR “tarred” Judge Ray is also inappropriate. TLR endorsed Judge Wainwright because it believed he was the more qualified and judicially conservative candidate. The Texas electorate agreed. Judge Ray, in contrast, raised 83 percent of her campaign funds from mass-tort plaintiff’s lawyers, including Walter Umphrey, John Eddie Williams, John O’Quinn, and Fred Baron. TLR does not “tar” a candidate when it informs the electorate of a candidate’s connection to the plaintiffs’ bar. This is information that the electorate should have in order to make an informed decision at the polls.
TEXAS MONTHLY responds. We acknowledge a major mistake here. The $1 million figure represents approximately the total amount contributed to Dale Wainwright’s campaign, not TLR’s contributions. We regret our error and apologize to TLR for the mistake. However, it is noteworthy that TLR also erred in stating that it contributed only $15,500 to the Wainwright campaign, though its mistake was hardly of the same magnitude as ours. TLR made three cash contributions to the Wainwright campaign totaling $17,500 and also donated fax, postage, and other services, including $7,436.11 for direct mail services, for a total of around $27,000. TLR’s mistake in no way excuses our own.
4. The article misstates the facts regarding TLR’s contributions to George W. Bush’s gubernatorial campaigns.
On page 220 of the article, Ms. Swartz states: “There was a new governor too: George W. Bush, who had defeated Ann Richards, in 1994, by sticking to four issues, one of which was tort reform. (By the time he was reelected, in 1998, TLR and similar groups had given more than $4 million to his two campaigns.)” This is wrong. TLR PAC contributed a total of $25,000 to George W. Bush’s gubernatorial campaigns. The article doesn’t say where the other $3,975,000 of the cited $4,000,000 came from. Nor does it relate how much money Mr. Bush’s opponents received in campaign contributions from personal-injury plaintiffs’ lawyers.
TEXAS MONTHLY responds: Swartz used figures complied by Texans for Public Justice (TPJ), an Austin-based nonprofit that is a leading source of information about campaign contributions. TPJ calculates that TLR and individuals on its board of governors contributed $1,324,570 to Bush’s 1994 campaign and $2,247,818 to his 1998 campaign, for a total of more than $3.5 million. The Texas Civil Justice League and affiliated businesses and individuals contributed a total, in the two races, of $583,155, for an overall total from TLR and similar groups of more than $4.1 million. TLR is correct that its PAC contributed only $25,000. However, individual contributions were considerably larger. For example, TLR co-founder Dick Weekley and his relatives donated more than $60,000.
5. The article misrepresents contingency fee and jury reforms advocated by TLR.
On page 256, Ms. Swartz writes: “There are other areas of the law that TLR would like to see ‘reformed.’ Along with prohibiting contingency fees for lawyers hired by government agencies, TLR wants to restrict who can serve on juries [emphasis added].” Both of these assertions are false and completely misrepresent the efforts of TLR in this regard.
First, TLR has never advocated, and does not advocate, “prohibiting” contingency fees for lawyers hired by government agencies. Our work on government officers hiring outside lawyers on contingent fees flows from the outrageous activities of former attorney general Dan Morales in awarding $3.3 billion to five lawyers as part of the tobacco settlement. A sorely needed TLR-inspired reform, which was sponsored by then-representative Rob Junell (Democrat, San Angelo) and enacted into law in 1999, places reasonable checks and balances on a state officer in making contingency fee arrangements with lawyers. Among other reforms, lawyers hired by the state under these arrangements will receive the lesser of the agreed-upon contingency fee or a “lodestar” computed fee that may result in a fee award of up to $4,000 per hour. These reforms most certainly do not “prohibit contingency fees,” as incorrectly alleged by Ms. Swartz. Instead, the statute codifies for use with state contingency fee arrangements the venerable “lodestar” method of determining reasonable legal fees, which has long been utilized by state and federal courts.
Second, with respect to jury reforms, TLR endeavors to make the entire jury experience more fair, efficient, and useful. That is why TLR supported the juror-pay bill in the 2005 legislative session, which raised juror pay to $40 per day. Additionally, TLR thinks it is regrettable that, for example, only 25 percent of the people summoned to jury service in Harris County actually show up. TLR believes that reforms designed to increase such percentages, along with other ideas to improve jury service being explored by judges, lawyers, and academics, such as allowing jurors to ask questions during the trial, certainly merit further consideration. None of these ideas, however, can accurately be portrayed as “restrict[ing] who can serve.”
TEXAS MONTHLY responds: It is surprising to see TLR attempt to disassociate itself from this phrase—“along with prohibiting contingency fees for lawyers hired by government bodies”—because it appears in the magazine exactly as dictated to a TEXAS MONTHLY fact checker by TLR spokesman Ken Hoagland. In practice, contingency fees for lawyers representing government agencies have been legislated out of existence by allowing them only if they are lower than an alternative judge-approved “lodestar” fee. Contingency fees remain an option—for any lawyer who wishes to be paid less rather than more.
It is equally surprising to see TLR deny that it seeks to restrict who can serve on juries. TLR’s own press kit calls for “upgrading the qualifications required to serve on juries.” It is not possible to upgrade qualifications without excluding those who currently meet qualifications but would not meet the upgraded qualifications.
6. The article incorrectly implies that Justice Priscilla Owen’s dissenting opinion in Dueñez evidences that she is beholden to TLR.
On page 256, in discussing the Dueñez opinion, Ms. Swartz writes, “Justice Priscilla Owen, whom TLR had helped elect, had conceded in her dissent that ‘a provider of alcohol should be vicariously liable for a patron’s intoxication.’ But she went on to say that she did not believe the Legislature meant what it said when it passed a law stating that a provider of alcohol was 100 percent liable for damages caused by an intoxicated patron who had been allowed to buy alcohol when he was clearly already drunk.” (emphasis added).
By this passage, Ms. Swartz clearly expects the reader to believe that Justice Priscilla Owen (who now sits on the United States Court of Appeals for the Fifth Circuit and who has received the American Bar Association’s highest qualification rating in her confirmation process) is beholden to TLR because of its support in her past election campaigns, and as a result, she conformed her dissenting opinion in Dueñez to satisfy TLR’s position on that case. However, Justice Owen’s dissenting opinion, which was joined by three other justices, was written and published long before TLR filed its amicus curiae brief in Dueñez. Earlier in the article, Ms. Swartz concedes as much when she speculates that one of the reasons the Texas Supreme Court granted a rehearing of its previously issued decision (to which Justice Owens and three others dissented) is that very same amicus curiae brief filed by TLR. ( See article, pages 254–256). Thus, it is obvious, presumably even to Ms. Swartz, that at the time Justice Owen was writing her dissenting opinion, she was unaware not only that TLR would later prepare and file an amicus curiae brief urging a rehearing but also that TLR would even take a position with respect to the Dueñez opinion. Additionally, the article fails to disclose that, in addition to Justice Owen, all five of the Justices who decided the majority opinion in Dueñez (which was dissented to by Justice Owens and three others) have been—and are—also supported by TLR. Curiously, Ms. Swartz did not see fit to mention that “TLR had helped elect” those five justices who rendered a decision that TLR later sought to have re-heard.
TEXAS MONTHLY responds: Once again, TLR has attributed words and motives to Swartz without justification. Describing Judge Owen, who is singled out as the author of the dissenting opinion, as someone “whom TLR had helped to elect” is not equivalent to suggesting Owen is beholden to TLR. It is information that Swartz has every right and reason to provide to our readers without having motives imputed to her. Owen is known to be a conservative judge with a pro-business record, which makes her exactly the kind of judicial candidate TLR would support—because of her philosophy, not because of her malleability.
Conclusion
TLR takes serious issue with both the legal and factual accuracy of Mimi Swartz’s recent article on civil justice reform in Texas. We believe that TEXAS MONTHLY should investigate the matters raised in this memorandum and our contemporaneous letter to the editor, and it should issue a complete correction of the erroneous and misleading statements. We would welcome the opportunity to discuss any of these items with you at your convenience.
TEXAS MONTHLY responds: With a couple of exceptions, for which we have apologized, the criticisms of Texans for Lawsuit Reform of Mimi Swartz’s article are largely without merit. Sadly, TLR chose to direct most of its criticism toward minor matters, such as whether Swartz had described points of law to TLR’s satisfaction, and to respond with bombast and indignation, rather than to engage in a discussion on the merits concerning the main point of Swartz’s story: Tort reform, which was necessary to bring fairness and balance back to the legal system, has overreached to the point where it has now effectively closed the courthouse to many people who have suffered injuries in many areas of litigation.
My Library
